Why not Trump, again?
Chris Cutrone
Platypus Review 166 | May 2024
Presented on April 5, 2024, at the opening plenary panel discussion on “Liberal democracy in crisis?” of the Platypus Affiliated Society’s 15th Annual International Convention, with Jordan De Anda (For the People), Howie Hawkins (U.S. Green Party), Ralph Leonard (writer at Unherd, Areo, et al.) and Matt McManus (author of The Political Theory of Liberal Socialism).[1]
I IDENTIFY STRONGLY WITH the wrongly accused. So does America more broadly. And Trump has been wrongly accused. If you are in the right, then there is no need to lie. And they have lied about Trump.
All the criminal charges and civil lawsuits against Trump — literally every single one — are using “novel legal theories” and “unprecedented applications of the law.” This is not because he was once President and no President has been tried previously. Anyone sued or prosecuted this way would be in the same untested waters of injustice.
And it is injustice. The idea of liberal democracy is that rights come before the law. Even those proven guilty have rights, and that includes the right not to be prosecuted even if you are indeed guilty of the crime with which you are accused — even if you had criminal intent and deliberately did wrong, prosecuting you can violate your rights. Prosecutorial discretion means that a choice not to do so can serve the ends of justice. That there is a choice and decision involved in prosecution — that it is not automatic — gives it an air of arbitrariness and hence injustice. This is indeed the point of criminal trials: to prove that the state has the right, so to speak, to violate your rights, and an injustice will be allowed by representatives of the people, who are thus shown to be responsible for it: in this case, the rights to life, liberty and the pursuit of happiness will not be respected. It is understood that the law and the state that enforces it are inherent violations of your rights — of everyone’s rights.
Critics of Trump’s prosecution are correct that it is a Stalinist Beria-style “show me the man and I will find the crime” targeting not of an offense but a person whose guilt is presumed. This is contrary to the presumption of innocence that favors the rights of the accused — including the right not to be investigated, let alone charged, at all. Who will defend such rights? The people. — Certainly not the state.
In the U.S., the trial favors the defendant — not so elsewhere, where it favors the state. When found not guilty before the law, a defendant is not thus found to be innocent — which can never be proved — but merely not culpable in the eyes of the state: the state is prevented from punishing you, but it does not find that you did no wrong. This is why a defendant who is not found guilty in criminal court can still be sued civilly and subject to civil judgment. Courts do not decide morality but only law — legal liability.
A jury votes on whether the state is permitted to violate your rights. That is democracy. This is why a jury can say, regardless of whether the state has proved its case beyond a reasonable doubt or not, that you are not to be held guilty before the law, even if you did indeed do the crime of which you are accused.
We don’t like that. But this is what freedom requires. The law is not absolute. Neither do facts amount to judgments. This is why factual innocence is not a legal defense in appeal of a conviction. If the law has been followed, then the facts are immaterial, for the people have decided to hold you accountable anyway.
But you can always be pardoned. The law and the people can convict you, and you can still be relieved of responsibility. The chief executive can decide otherwise. Your rights even as a guilty person can be vindicated ultimately.
In a criminal trial are present the three branches of government in the U.S. Constitutional Republic that we hear so much about — it is a democratic republic, even if not simply a democracy. The executive branch elected to enforce the law is present in the prosecutor. The judicial branch in the judge. And the people are in the jury of your peers. All interpret the law. All decide whether and how the law will be applied, if at all.
In the separation of powers of checks and balances in divided government, the legislature is composed of representatives of the people who make the laws. But since it is representative and not direct democracy, the people are supposed to continually decide on whether the laws actually represent them: this is why they are constantly revised, and why representatives are constantly replaced — or at least hypothetically are supposed to be, though in practice most serve interminably entrenched in office.
But who actually writes the laws in advanced capitalism? Not the legislative representatives themselves or their staff, but corporate lobbyists and government bureaucrats — laws so elaborate and complex that the public cannot understand them, but only those same bureaucrats and corporate agents who game the legal system that they themselves create, in which their own sophistry prevails. But this violates what is supposed to be the spirit of the laws.
The legislative representatives judge the will of the people in writing the law; the executives interpret the law and make decisions about enforcing it or not; and the judicial branch judges whether the execution of the law accords with rights — and indeed whether the laws themselves are right: they both review the law itself as well as its execution. All are elected — all are understood to be political in nature, namely, that they are functions of constituting the polis in action.
The law does not have divine but only human status: provisional, fallible, revisable, imperfect — and hence fundamentally unjust. In a criminal trial, justice is not to be achieved but is only at best a by-product of the application of the law. It is the justice in the application of the law that is at issue, not justice for the crime, which is impossible — as God says, “Vengeance is Mine.”
In modern, that is to say, bourgeois society, it is understood that the law does not make society but society makes the law. Society does not serve the state, but the state serves society.
The U.S. is not a democracy — not like Ancient Athens, in which the state was society and society was the state — but a constitutional republic. Moreover, the Constitution is interpreted according to the principles of the Declaration of Independence — according to the principles of the American Revolution.[2]
It is not democracy because it is not the rule of the people but rather the rule of law. And the rule of law is not identical with the rule of society. There are civil rights, meaning, the rights of civil society against the state — and against the laws the state enforces.
These rights are inalienable. You can never lose your rights but only have them abrogated — violated. And these rights are not only for citizens, but are human rights: they apply to everyone where the U.S. Constitution can hold sway. — The U.S. is not a nation-state, because the principles of the Declaration of Independence and U.S. Constitution are understood to apply everywhere and to everyone — at least where feasible: the scope and reach of the Revolution.
The U.S. Constitutional order and system is revolutionary. It is expansive and ever-deepening. We continue to recognize and explore the full dimensions of rights — of freedom. This is not a local but a world-wide phenomenon. The Revolution has the power to protect all escaped slaves on its free soil — and beyond.
Do we still believe it? People around the world do. Perhaps some haven’t heard it yet — that somewhere they have been recognized as free.
Citizen Trump is trying to go back to Washington. Who is trying to stop him? Certainly not the people. Or at least not all of them. Perhaps not even a majority.
Liberal democracy means — unlike Ancient democracy — recognizing and protecting the rights of minorities against the majority — not least why there are civil rights against the law voted by the majority. And this includes a minority of one. A single person with whom no one agrees nonetheless has rights against everyone else. — Do we still believe it?
Capitalism demands that we surrender our rights to the needs not of society but of capital. But we are liable to misrecognize the needs of capital as those of society. And of course they are: the needs of an alienated society. When we think we are serving the needs of society we are inevitably always serving the needs of capital. We surrender our rights to the needs not of society but of capital. Always.
Marx recognized long ago that socialism is capitalism — capitalism is socialism. Socialism is not freedom but its alienated projection: a projection of capitalism. Capitalism is alienated society and socialism is a projection of that alienation. This includes political alienation, which becomes a mystification of the law and state, their reification and hypostatization — ironically, since the bourgeois revolution had secularized law and the state and removed them from the domain of divine justification and religious authority, bringing them within the realm of consciousness of society in history. That consciousness has withered.
Marx critiqued socialism as an alienated misrecognition of the content of freedom, in which it appears as either anarchy or totalitarian statism: as pure irrationalism or pure rationalism. But as usual for the Marxist dialectic, it is both and neither.
Socialism was meant to work through this crisis of bourgeois emancipation and its political form of liberal democracy in capitalism, not negate it in either libertarianism or totalitarian democracy.
Classical liberal thought is usually associated with the so-called “minimal state,” but this is misleading. In the conception of the U.S. Constitutional order envisaged by the Founders — the American Revolutionaries — the tyranny of the state was not merely counterposed to the freedom of society, but the different elements of state power were counterbalanced against each other as opposed tyrannies: the tyranny of law; the tyranny of judicial judgment; and the tyranny of executive action. Each was a dictatorship checking and balancing the others: a legislative dictatorship; judicial dictatorship; and executive dictatorship.
It is the third of these that concerns us here, regarding Trump. Trump stands accused of abusing power and wanting to establish dictatorship. But against this the dictatorial powers of the law and the state enforcement of it are being mobilized against his candidacy for reelection to the Presidency. In so doing, Trump’s opponents are threatening the authority and power of the executive embodied in the Presidency as such. The President is an elected monarch — an elected dictator. This is especially so in capitalism which brings out the necessity of dictatorial methods especially prominently, turning it from a rare occasion of emergency into the normal exercise in managing the rolling crises of capital. Marx called this the “Bonapartism” of the capitalist state, as distinct from its earlier, pre-Industrial Revolution bourgeois form. This is seen in the rise of a permanent police force and prisons, both of which are inventions of the industrial era, to control the proletariat. From the subsequent Progressive era, we get a “fourth branch of government,” namely the permanent bureaucracy of the administrative state. It is the dictatorship of this Deep State that has conflicted with that of the elected Presidency. This has raised the issue of civilian government per se. Trump represents elected civilian authority over the state where they clash.
Trump claims Presidential immunity from criminal prosecution — the Lockean executive prerogative to break the law in order to preserve it. There is already legislative (parliamentary) and judicial immunity, to prevent abusive exercise of the law by the executive — which in Locke’s moment was that of the hereditary monarchy and its appointed Majesty’s deputies (including judges). What is usually overlooked is the need to prevent the reverse, the legislative (and judicial) abuse of the executive function of government. There is indeed a Deep State of permanent bureaucratic “special bodies of armed men” in the state of capitalism, which has sought to escape political responsibility to the civilian authority of elected office in the Presidency. Trump was targeted by the Deep State as well as by his political adversaries (Democrats and Republicans) from the beginning of his candidacy.
The Unitary Executive Theory raised in response to the Nixon-era reforms curtailing Presidential authority and power is both legally and politically correct: that without untrammeled executive power, there is tyranny. The bureaucratic administrative changes made after Watergate, establishing independence of federal law enforcement from the Presidency at the dawn of the neoliberal era were long in the making, and blind or indifferent to the fatal compromise of politics involved in it. Nixon was ousted by the CIA and FBI — as they’ve now tried to do with Trump. It is not surprising that along with Trump and the crisis of the electoral political parties manifesting at the end of neoliberalism, the problematic rationale of these post-Nixon changes is surfacing again now. Nixon said he thought that if the President did it, it wasn’t illegal. He might have been right about that. He resigned to avoid impeachment — which is importantly a political and not legal process, conducted by elected politicians not career prosecutors and law enforcement officers. The post-Watergate reforms removed the Deep State in the executive branch of federal government from elected political civilian authority.
Trump maintains that the decision of his case will affect not only his own fate, but that of the U.S. Presidency as such. This is simply true. Should the President become a mere figurehead for the permanent Deep State? Are Presidential initiatives merely suggestions to the bureaucracy? Congress has set up unelected bureaucratic executive agencies whose decisions have the force of law. Is the Presidential election merely a rallying-point for down-ballot candidates to Congress? Is there only to be legislation and lawfare in the courts, and no longer any executive prerogative by electoral mandate? The Presidency is the only office chosen by the entire electorate — however mediated by the federal state system, still, the President is the only nationally elected politician. This is what makes him dangerous.
Trump is wrongly accused not because he didn’t do what they say, but because his prosecution is wrongly motivated, and is intended to abrogate liberal democracy in a very pointed way: by violating the personal rights of an individual and denying the collective political rights of democracy.
Marx declared the goal of communism to be a situation where the “freedom of each is the precondition for the freedom of all.” This was no utopian goal but an existing value already in bourgeois society, however violated by capitalism, but still to be aspired as a task in getting beyond it. It was a principle to be observed in practice — so that its compromise could be recognized as a problem in the here and now, not to be accepted in its apparent but false necessity in capitalism. Socialism was to realize this.
But the pseudo-“Left” has long fallen into the antinomy of individualism vs. collectivism in capitalist contradiction, and has taken on the latter value as its own — abandoning personal liberty to the avowed Right. However, conservative collectivism also belongs to the Right, demanding the sacrifice of the individual. We should not agree to this demand, and certainly not in the name of “social justice.”
The fact that Trump appears politically as both a private person only selfishly motivated and a public menace unleashing the demons of popular fury is indicative of the contradiction that liberal democracy presents in capitalism. He thus perfectly embodies the issue. That he is an unremarkably moderate conservative Centrist in his policies and politics only emphasizes this fact: Citizen Trump is the problem.
The threat of “fascism” — the specter of Ancient democracy and tribal republicanism — has haunted the capitalist world from the inception of its crisis. After long crying wolf at Trump, finally on January 6, 2021, Trump seemed to confirm the worst fears by summoning a mob to riot at the Capitol to delay or prevent certification of his electoral defeat — to “stop the steal.” Perhaps, as Nixon said in 1960, “they stole it fair and square,” and so there’s no point in challenging it. But the man has a right to speak, however demagogically, and the people have a right to protest against their government at its public buildings, whose physical structures and political procedures after all belong to them — and no one but them. They belong to us.
Trump’s election was protested by Democrats, so why is protesting Biden’s election forbidden?
The Democrats and established Republicans sought to delegitimize Trump’s election, and Trump returned the favor. Evidently his most prized classified documents were those that showed his innocence of the Russia collusion hoax manufactured against him by the Democrats and Deep State.
In this sense, we have the historic right and obligation, the duty as a society, to experience politically the phenomenon of Trump, for it shows all the weak and blind spots of liberal democracy in capitalism. As Tocqueville said ironically of American democracy, the public receives the government it deserves: as a society we also get the public we deserve. Trump demands that we confront the problem of politics this society has produced in capitalism. But Trump is — by far — not the worst example of it.
As I wrote more than eight years ago, when Trump first appeared on the political stage, the crisis of neoliberalism has been a crisis of its politics, and this takes the form of a crisis of liberal democracy, specifically of its political parties. All the anxious talk about “populism” betrays this fact.
In Ancient Rome, every election was attended by gang warfare and blood on the streets spilled by the competing factions. Candidates were assassinated, and elections triggered civil wars — as in capitalism. Every election was a political revolution. This is still the case, and it shows. The bug is a feature; the glitch is the algorithm; the noise is the music — of democracy. It is a Gesamtkunstwerk — but not necessarily a Götterdämmerung.[3] Especially in the U.S., which is a continuation of the original American Revolution. Vivek Ramaswamy called for reinvigorating the spirit of 1776: he sees that in Trump.
The answer proposed by Trump’s traumatized opponents is to suspend rights and avoid election: to cancel liberalism and democracy; to ban the opera and imprison its diva. This is no exaggeration. They have done and will do everything they possibly can to try preventing Trump’s election and taking office, in a most remarkable series of events in the history of the U.S. Neither Trump and his supporters nor his opponents are wrong in saying that the fate of American democracy is on the line. The only question is what this says and what it means. Are we afraid to learn? We have yet to figure it out.
Trump and Trumpism are not going away, whatever we might wish. The task of politics remains — even and perhaps especially in the crisis of capitalist politics. It points the way to socialist politics, from the very heart of liberal democracy in crisis. Without a political party for socialism, this is the — very best — politics capitalism has to offer. Are we afraid of it?
So, I repeat the question, for the third time,[4] now: why not Trump — again? |P
[1] Video of the panel is available online at <https://youtu.be/uIayk1nqMRU>.
[2] See Chris Cutrone, “The American Revolution and the Left,” Platypus Review 124 (March 2020), in The Death of the Millennial Left (Sublation, 2023), available online at <https://platypus1917.org/2020/03/01/the-american-revolution-and-the-left/>.
[3] [German] “Total artwork” and “twilight of the gods.”
[4] See Chris Cutrone, “Why not Trump?,” Platypus Review 89 (September 2016) and “Why not Trump again?,” Platypus Review 123 (February 2020), in The Death of the Millennial Left, available online at <https://platypus1917.org/2016/09/06/why-not-trump/> and <https://platypus1917.org/2020/02/01/why-not-trump-again/>.
